[ v13 p571 ]
13:0571(95)CA
The decision of the Authority follows:
13 FLRA No. 95
DEPARTMENT OF THE NAVY
NORFOLK NAVAL SHIPYARD
PORTSMOUTH, VIRGINIA
Respondent
and
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADE COUNCIL
Charging Party
Case No. 3-CA-1800
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel and the Charging Party filed exceptions to the Judge's
Decision and the Respondent filed an opposition to the exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended order.
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 3-CA-1800 be, and
it hereby is, dismissed.
Issued, Washington, D.C., January 6, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
NORFOLK NAVAL SHIPYARD
Respondent
and
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL
Charging Party
Case No. 3-CA-1800
Patricia M. Eanet, Esq.
Susan Shinkman, Esq.
For the General Counsel
Delores T. Griffin
Andrew James
For the Respondent
Ronald E. Ault
For the Charging Party
Before: JOHN H. FENTON
Chief Administrative Law Judge
DECISION
Statement of the Case
This proceeding arises under the Federal Service Labor-Management
Relations Statute (5 U.S.C. Sec. 7101 et seq.), and the Final Rules and
Regulations issued thereunder (5 C.F.R. Sec. 2423.14 et seq.) It is
based on a Complaint issued by the Regional Director of Region III,
Federal Labor Relations Authority, alleging that Respondent violated
Section 7116(a)(1) and (5) of the Statute by refusing to reopen contract
negotiations after the Union's membership refused to ratify the
tentative agreement reached. Respondent defends on the ground that
there was, in fact, no ratification requirement and, further, that an
agreement reached pursuant to negotiations ordered by the Federal
Service Impasses Panel cannot be subject to ratification any more than
could the award of an arbitrator chosen under the auspices of FSIP.
Respondent also argues that an impasse was reached in discussions
following the ratification vote and that this controversy therefore
remains subject to the jurisdiction of FSIP rather than the unfair labor
practice procedures of the Authority.
A formal hearing was held in Norfolk, Virginia on April 20, 1981.
All parties were afforded full opportunity to examine witnesses,
introduce evidence and file briefs. Upon the entire record, including
my observation of the witnesses and their demeanor, I make the following
findings of fact, conclusions and recommended order:
Findings of Fact
1. Respondent and Charging Party have been parties to a series of
collective bargaining agreements. Until negotiation of the contract at
issue, all agreements had been subject to ratification by the Union's
membership. In March 1979, the parties agreed upon ground rules for the
negotiation of a new agreement, and such negotiations began in May and
continued until October 2, 1980. Those ground rules departed from the
earlier ones in that the former provision that Articles or Sections
agreed upon and initialed by the Chief Negotiators were "tentative until
the entire Agreement is negotiated and signed" was replaced by a
provision that "(c)hanges to proposals which have been initialed and
dated may be made with the mutual consent of the parties." The two sets
of rules had identical provisions regarding the conclusion of
negotiations at the local level. They provided that:
XIV. Conclusion of negotiations at local level. Upon
completion of a full and complete agreement acceptable to the
parties, the Employer will prepare the agreement in a final draft
for review and proofreading. Both parties will sign the agreement
after it has been ratified by the Council and approved by the
Shipyard Commander. The Employer will then forward the agreement
to the Chief of Naval Operations for approval.
2. While there is much dispute on the question whether the parties
intended that ratification would be a requirement of a full and binding
agreement, there is no evidence whatever that Union negotiators ever
explicitly yielded on this point. Given the past practice and the
language of the ground rules, I find that ratification was essential to
a binding agreement.
3. At some point in these protracted negotiations, the Union
requested the assistance of the Federal Service Impasses Panel in
resolving an impasse. On August 29, 1980, the Panel wrote the parties
that it had:
determined in accordance with section 2471.6(a)(2) /1/ of its
regulations that during the 30 days following receipt of this
letter, the parties shall resume negotiations on a concentrated
schedule of bargaining, on all issues remaining in dispute,
seeking, as necessary, the assistance of the Federal Mediation and
Conciliation Service . . . (i)f any issues remained unresolved at
the end of the 30-day period, they shall be submitted by the
parties to final and binding arbitration.
4. The negotiators reached agreement on October 2, 1980. In
accordance with the Union's Constitution and By-Laws (Article XV,
Section 1), that agreement was put to a vote of the membership on
November 11, and was rejected.
5. On November 17, there was a meeting called by Andrew James, Head
of Respondent's Employee Relations Division and its Chief Negotiator.
It was called for the purpose of inquiring into the cause and
consequences of the failure of ratification, of which Respondent had
received no "official" notification. Present, in addition to James and
a number of his negotiating team, were Ronald E. Ault, the Union's Chief
Negotiator and three numbers of his team. They discussed the meeting at
which the vote took place and the issues responsible for the failure of
ratification. James, who said the meeting was not a bargaining session,
told the Union that both parties had made concessions in order to reach
agreement on October 2, that the clauses the Union now wished to
repudiate represented Respondent's bargaining goals and that a return to
the bargaining table would place the parties at impasse. The meeting
lasted less than thirty minutes. Later that day, Ault, in writing,
notified Respondent that the membership had voted down the contract and
requested that negotiations be reopened.
6. On November 20, J. P. Early, Respondent's Director of Industrial
Relations, replied to Ault, expressing his disappointment at the failure
to ratify an agreement reached "under the auspices of the Federal
Service Impasses Panel" and responding to the request to reopen
negotiations by asking for a list of those provisions which prompted the
membership not to ratify the agreement. Early also expressed the hope
that "we may bring this matter to a speedy conclusion."
7. On December 3, Ault provided Early with a list of the Articles or
issues which, he said, were the major reasons for voting down the
contract. On December 12, James responded to Ault's letter of November
17 and December 3. Referring, as had Early, to the agreement reached
under the auspices of the Panel, James said:
Your failure to acquire the support of your labor organization
in ratifying the agreement is an internal union matter over which
the Shipyard has no control. Our duty to bargain in good faith
and our obligation to reach a collective bargaining agreement was
fulfilled on October 2, 1980. There are no outstanding proposals
and counter proposals to be considered by the parties. Further,
your initials or the initials of an authorized Council
representative appear on all issues submitted for negotiation.
Consequently, I find there is no basis for reopening negotiations.
The Norfolk Naval Shipyard hereby requests in accordance with
Section 7114(b)(5) of the Statute that the Council (the duly
authorized representative of production unit employees) execute
the document to which the parties agreed on October 2.
Please contact me at your earliest convenience in order that a
signing ceremony may be arranged.
8. On December 24, the Union filed an unfair labor practice charge.
There is no indication that either party sought to pursue the impasse
resolution plan set forth in the Panel's letter of August 29. It
appears that an arbitrator had been selected but was never used.
Discussion and Conclusions
Aside from its contention that ratification was not a prerequisite to
a binding agreement (already rejected in the findings of fact),
Respondent defends on the ground that the October 2 agreement had the
force and effect of binding arbitration (i.e., that an agreement reached
under the auspices of the Panel is no more subject to member
ratification than would be the award of an arbitrator picked pursuant to
a Panel directive), and that the parties, in any event, reached a good
faith impasse after the ratification vote, thus placing the disputed
issues before the Panel for final arbitration or final offer decision
resolution. General Counsel counters that Respondent misconceives the
role and purpose of the Panel; that its recommendations do not
constitute the assumption of "such control" over the negotiating
procedure so as to impose the effect of binding interest arbitration on
an agreement reached without the aid of an arbitrator; and that the
Respondent was therefore obligated to return to the bargaining table
when the tentative agreement of October 2 was rejected. In addition,
the General Counsel argues that the discussions of November 17 did not
constitute negotiations and therefore no impasse could have occurred on
that occasion.
The statutory scheme, as outlined in Part 2471 of the Regulations,
indicates that a Panel recommendation made pursuant to Section
2471.6(a)(2) is, in fact, far more than that. Thus, Section 2471.11(a)
states that if "the parties do not arrive at a settlement as a result of
or during actions taken under Secs. 2471.6(a)(2) . . . the Panel may
take whatever action is necessary and not inconsistent with 5
U.S.C.Chapter 71 to resolve the impasse, including but not limited to,
methods . . . such as directing the parties to accept a factfinder's
recommendation, order binding arbitration . . . and rendering a binding
decision." It would appear that once a party to an impasse requests the
Panel's assistance, and it asserts jurisdiction over the matter, the
parties are not free to ignore the Panel's recommendation. Here, the
Panel directed that the parties follow a two-phased program: conclude
an agreement within 30 days or else submit unresolved issues to final
and binding arbitration. Whether or not one would add to the 30-day
concentrated negotiations matter some period for the ratification
process, the fact is that these parties did not reach agreement. Phase
two, the selection of an arbitrator and submission to him of all
unresolved issues, should then have come into play.
If either or both parties had some problem with that (as for example,
identifying unresolved issues), that problem should have been placed
before the Panel, which, of course, has a whole arsenal of weapons with
which to address the matter. Instead the Union switched horses,
trotting over to the General Counsel to test the usefulness of the
Statute's unfair labor practice procedures. It seems to me that this is
abandonment of an elaborate method precisely designed for forcing
agreement under the threat of imposed contract terms, and for the
imposition of such terms should that technique fail. The power and
importance of the Panel is recognized in Section 7116, which makes it
unlawful for either party to "fail or refuse to cooperate in impasse
procedures and impasse decisions" (emphasis supplied). If the process
of the Panel is to be affected by the General Counsel's prosecution of
unfair labor practices related to the same negotiations, there is a risk
of conflicting decisions and remedies, as well as duplication of effort
and resources. /2/ In my view, the Panel had jurisdiction over these
failed negotiations at all material times, and the proper course for the
parties was to submit their dispute to an arbitrator or seek from the
Panel some approved alternative course of action. Until the Panel
declined to assert further jurisdiction, disposed of the case, or there
was a refusal to cooperate with its procedures or comply with its
decision actionable upon a charge under Section 7116, a sense of comity
would dictate the General Counsel not intrude.
I conclude that it is inappropriate to litigate as an unfair labor
practice a matter which not only goes to the heart of the negotiations
which are the subject of the Panel's impasse procedures, but which, in
my view, are inconsistent with the Panel's procedures. Thus the Panel
directed binding arbitration should thirty days of concentrated
negotiations not result in an agreement, and the General Counsel,
through this proceeding, attempts to compel Respondent to resume
negotiations. Respondent has been directed by two divisions of the
Authority to take two different courses of action. As I read the
Statutory scheme, no prosecution related to these negotiations is
authorized unless and until the Panel's processes are completed or are
met with unlawful defiance. Accordingly, I recommend that the Complaint
be dismissed.
JOHN H. FENTON
Chief Administrative Law Judge
Dated: July 8, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ That Section provides that the Panel shall "Recommend to the
parties, including but not limited to arbitration, for the resolution of
the impasse and/or assist them in resolving the impasse through whatever
methods and procedures the Panel considers appropriate.
/2/ In the Report of Case Handling Developments of the Office of the
General Counsel (October 1, 1981 - December 31, 1981), it was announced
that the General Counsel would defer processing a charge, once it became
aware of such concurrent proceedings, until the Panel proceeding had
been completed. This policy statement was, of course, issued long after
this matter went to trial.